Opinion
For Opinion on Rehearing, see 45 Cal.Rptr. 503.
Heinly, Hewett, Rickles & Heinly and William A. Dougherty, Santa Ana, for defendant and appellant.
Thomas C. Lynch, Atty. Gen., William E. James, Asst. Atty. Gen., and Gilbert F. Nelson, Deputy Atty. Gen., for plaintiff and respondent.
Assigned by the Chairman of the Judicial Council.
Appeal from the judgment entered upon a jury verdict finding defendant guilty of assault with intent to commit rape in violation of section 220 of the Penal Code. Appellant moved for a new trial which was denied. His motion for probation was likewise denied and his sentencing followed.
In an information filed by the District Attorney of Orange County on November 8, 1963, appellant was charged in two counts, first with violation of section 261, subdivision 3 of the Penal Code, Forcible Rape, and in Count II, with violation of section 220 of the Penal Code, Assault with Intent to Commit Rape. Arraignment was scheduled for November 8, 1963, but appellant failed to appear, whereupon he was adjudged in contempt of court. On December The unrefuted evidence in the record is, in summary, as follows: On October 2, 1963, Miss Rita Lemieux, the prosecuting witness, was living in Pomona, California with Mr. and Mrs. Helyi (adopted in short for Szerdahelyi) and their two daughters. Miss Lemieux had recently arrived from Canada. She had obtained a job at a Hamilton Drug Store in Pomona and first met the appellant at the drug store where he was working as a janitor. Appellant offered to take her around to each of the other four Hamilton stores to meet the staff and later to have dinner. Miss Lemieux agreed that she would do this on her first day off, which which was October 2. For the date, she wore a Chinese style dress.
Appellant and Miss Lemieux drove through Brea Canyon and ended up in Long Beach. This was Miss Lemieux's first time out of Pomona. She was able to identify the road as the Brea Canyon because she saw signs on the road. Appellant told her, 'Tonight we will come back by the other way.' In Long Beach, he took her to the amusement park and they later went to dinner at the Silver Saddle restaurant. There she had one mixed drink and a couple of sips on the second one. She had some wine with dinner. After dinner appellant and Miss Lemieux drove around until they found a place for dancing called Hondo Brothers. They remained there from 7:30 p. m. until 12:30 a. m. While there, Miss Lemieux had two beers. While at Hondo Brothers, appellant tried to kiss her once but she refused. Shortly thereafter, they left for Pomona and Miss Lemieux was sitting over next to the car door. Appellant said, 'Come a little closer.' She accordingly moved to the middle of the seat. She was unable to identify or recall the streets they traversed on the way back toward Pomona. About 10 or 15 minutes after leaving Hondo Brothers, appellant made a left turn and started on a paved road. He drove about a quarter of a mile and stopped near a gate that had a sign on it, 'Closed.' It was a wire gate with diamond-shaped holes in it. Appellant stopped the car and got out. He walked behind the car and came over to Miss Lemieux's side of the car. He said, 'Let's have it,' and she replied, 'What?' He said, 'You know what I mean,' and she said, 'No, I won't.' He said, 'Come on.' She said, 'No, I won't I never did it before and I won't.' Appellant, having opened the car door, grabbed Miss Lemieux's clothes, pulled up her dress and ripped it on both sides. As appellant was attempting to pull up the dress, she was attempting to push him away with her hands on his chest. As she shoved him, appellant said, 'Don't,' and then said, 'Come on, come on.' The struggle continued. Appellant laid her down on the car seat. Her left hand was on the horn and steering wheel and her right arm was wedged between the seat of the car and her body. At this point appellant unzipped his zipper Miss Lemieux stated that she was finally able to get back on the seat of the car. Appellant again pushed her back on the seat and succeeded in getting on top of her. She stated that her hands were beside her body; appellant was holding them with his knees on her hands; according to her there was a penetration; she continued to fight him. Appellant then drove her home and on the way stated, 'If you are pregnant, I will marry you and I will have your family brought down here. I will buy you a house.' When Miss Lemieux arrived home she saw Mr. Helyi and asked to speak to Mrs. Helyi. She reported to Mrs. Helyi what had happened.
On October 3, in the afternoon, Miss Lemieux visited a doctor, who examined her. The doctor found evidence of the struggle from bruises on her arms and a contusion of the chin which appeared as though she might have been struck. The doctor concluded, however, that penetration had probably not occurred under the circumstances as she described them to him. However, his examination did reveal abrasions just inside of the labia, or lips of the vagina.
The doctor reported the incident to the police and the police arrived at Miss Lemieux's home October 4. Photographs were taken by the police officers of bruises resulting from the blows she had received during this incident.
On the morning of October 3, Mr. Helyi received a series of three telephone calls. The first call was at approximately 7:30 or 8:00 a. m. The caller, apparently a male voice, stated that he wished to speak to Miss Lemieux and Mr. Helyi called her to the telephone. In the second call, a voice said, 'I am a friend of Chester Erb.' Mr. Helyi said, 'I don't discuss the matter with anybody through the phone,' and hung up. The third call came about five minutes after the second, and the voice of the caller began by stating, 'I am Chester Erb.' Continuing, the voice stated, 'I am the guy who took Rita out last night' and then the voice stated that he would like to apologize for what happened. He said that he was drunk and could not recall what had happened; that he did not know whether he had raped the girl or not. Mr. Helyi declined the voice's offer to come to the house and said, 'I don't discuss this matter,' and then hung up. So far as he knew, he had never heard the voice prior to this telephone call.
The investigating officer, Robert Rodriguez, a police officer of the City of Pomona for 11 years, stated that he went into the Chino area with Miss Lemieux and her landlady. They were not able to identify the exact scene of the alleged offense at that time. The officer contacted appellant on October 7 at the Hamilton Drug Store in Pomona. Appellant made certain statements freely and voluntarily, without any coercion or threats. He stated that he had taken Miss Lemieux out to dinner and he had made a stop in the Carbon Canyon area, but he denied having attempted to molest her. He directed the officer to a spot on Carbon Canyon Road at the intersection of Valencia where he said he had stopped. That particular spot is in Orange County. There was no gate visible at that spot. Later the officer talked to Miss Lemieux and she stated that they had parked near a gate across the road. The officer then continued north on Valencia two or three miles until he came to a location with a gate. The gate was open during the day. It was a chain link type gate. On October 30, Miss Lemieux and Mrs. Helyi went with Officer Willie Edward Stansbury to the gate on Valencia Road at the entrance to the Olinda Disposal Station, operated by the County of Orange and located within the county. This gate is a large chain link type that swings back and forth. It is approximately two to two and a half miles from the intersection of Carbon Canyon and Valencia. The area is devoid of homes and businesses. The road is paved but in poor condition. Miss Lemieux stated that this was the location where the attack occurred.
Appellant urges the following points for reversal:
1. That he was denied his right to be indicted by the grand jury as guaranteed by the Fifth Amendment to the Federal Constitution.
2. That he was denied his right to a speedy trial as guaranteed by the Sixth Amendment to the Federal Constitution and his statutory right to a speedy trial guaranteed by section 1382 of the Penal Code.
3. That he was denied his privilege against self-incrimination under the Fifth Amendment to the Federal Constitution because the district attorney commented upon his failure to take the witness stand.
4. That he was denied his right to an impartial jury trial because the court refused his requested instructions.
5. That the evidence was insufficient to show that the crime was committed in Orange County and that the Orange County Superior Court therefore lacked jurisdiction.
6. That evidence of witness Helyi as to appellant's telephone call was inadmissible and hearsay.
7. That admission of appellant's statements to Officer Rodriguez was a denial of due process.
8. That he was denied a ruling on his motion for a new trial and therefore is entitled to a new trial.
Referring to point 1 of these contentions, accusation by information has been held not to be a deprivation of due process. It is authorized by the California Constitution, Article I, section 8, and has long been held to meet the requirements of the Fourteenth Amendment to the U.S. Constitution, and not in violation of the Fifth Amendment which provides only a limitation on federal and not state powers. See Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, in the light of Hallinger v. Davis, 146 U.S. 314, 319, 13 S.Ct. 105, 36 L.Ed. 986, and Ex parte Whistler, D.C., 65 F.Supp. 40. See also Kalloch v. Superior Court, 56 Cal. 229, 240; People v. Carreras, 216 Cal.App.2d 807, 811, 31 Cal.Rptr. 436; People v. Stradwick, 215 Cal.App.2d 839, 840-841, 30 Cal.Rptr. 791; People v. Reed, 210 Cal.App.2d 80, 84, 26 Cal.Rptr. 428; People v. Hernandez, 206 Cal.App.2d 253, 255, 23 Cal.Rptr. 488 and People v. Sewell, 95 Cal.App.2d 850, 853-854, 214 P.2d 113.
As to point 2, in which appellant claims a denial of his right to a speedy trial under section 1382 of the Penal Code and the Sixth Amendment to the Federal Constitution, the record discloses, as outlined above, that a substantial portion of the initial delay was occasioned by defendant's failure to appear for arraignment.
It should not and does not lie with a defendant to escalate his own wrongs into a protective legal right. Such a result is neither within the purpose of the statutory enactment or the constitutional guarantee. From all that appears in the record, no mitigating circumstance was shown to account for defendant's repeated failure to appear in court either personally for arraignment or by counsel. Without other reason, these failures in and of themselves would fall within the 'good cause' exemption of Penal Code, section 1382, subdivision 3. (People v. Burns, 128 Cal.App. 226, 16 P.2d 1015.) Furthermore, where the 'good cause,' such as repeated, unexplained absences when legally required to appear, is adequately reflected in the court's own minutes, no further showing by the prosecution People v. Wilson,
People v. McClure, People v. Contrerai, Stewart v. Superior Court, People v. Workman, Ughbanks v. Armstrong, Gaines v. State of Washington, Copley v. Sweet,The subject of appellant's third point concerning comment by the prosecution upon his failure to take the witness stand in his own behalf was very recently passed upon by our Supreme Court in People v. Modesto, 62 A.C. 452, 469, 42 Cal.Rptr. 417, 427, 398 P.2d 753, 763. After a discussion of the cases, both state and federal, on the point, the court makes this statement:
'We are bound by the California Constitution's provision for comment unless it clearly violates the United States Constitution. Since we do not believe that it does so, we are precluded from giving effect to any contrary implications in Tyler or Adamson.'
See People v. Tyler (1869), 36 Cal. 522; People v. Adamson, 27 Cal.2d 478, 165 P.2d 3.
Since the California Constitution, Article I, section 13, permits such comment, as does Penal Code, section 1323, and since in this case we find no impropriety in the comments made by the prosecution, particularly in the light of the court's instruction on the subject, we reject appellant's contention on this ground.
Referring to appellant's point 4, we have reviewed the instructions refused by the trial court and find no error in this refusal. Appellant refers to the case of People v. Cicerelli, 123 Cal.App. 48, 10 P.2d 792, in support of his position that the court should have given the following instruction proposed by appellant:
'An assault committed with only an intent to have sexual intercourse would be insufficient and amount only to (simple) assault.'
The Cicerelli case does not support the proposition embraced by this instruction. In it there was a reversal based upon the theory that the appellant had no intent to have intercourse with the female assaulted. Here, in view of the only evidence in the record concerning appellant's intent, the trial court had before it no basis for a determination other than if there was an assault at all it was a forcible assault with intent to have sexual intercourse with the prosecuting witness without her consent. Since she was not his wife, this could not in reason be considered other than as an assault to commit rape as rape is defined in Penal Code, section 261, subdivision 3. Where there is an assault if rape or the intent to accomplish sexual intercourse by force is disclosed by the evidence, it is not error for the court to refuse to instruct the jury on simple assault. (People v. Keith, 141 Cal. 686, 75 P. 304; People v. Cardaropali, 115 Cal.App.2d 235, 251 P.2d 692). The crime of assault to commit rape has been committed by a defendant if, during an assault on a female not his wife, he intended to have sexual intercourse with her and used force in an attempt to overcome her resistance. (People v. Padilla, People v. Thomas,
In point 5, appellant questions the sufficiency of the evidence to show that the crime was committed on Orange County and therefore questions the Orange County court's jurisdiction to try the case. Venue rather than jurisdiction is the point involved, for the superior court obviously had jurisdiction. Venue for the trial of a criminal case need not be proven beyond a reasonable doubt, but only by a preponderance of the evidence. It may be established by circumstantial evidence. (People v. Calderon, 205 Cal.App.2d 566, 574, 23 Cal.Rptr. 62; People v. Kutz, 187 Cal.App.2d 431, 434, 9 Cal.Rptr. 626; People v. Strickland, 148 Cal.App.2d 18, 21, 306 P.2d 40; People v. Harkness, 51 Cal.App.2d 133, 138-139, 124 P.2d 85.) In People v. Carter, 10 Cal.App.2d 387, 389, 52 P.2d 294, 295, appears this language:
'The state gives no assurance to its feloniously insubordinate citizens that the venue of their crimes will be fixed beyond a reasonable doubt; that doctrine applies only to the issue of guilt.'
We have examined the record. Suffice it to state without reviewing the evidence here that we find it amply sufficient to support the venue of the Orange County court.
Under point 6, appellant claims that the testimony of state's witness Paul Frank Helyi concerning appellant's telephone calls was hearsay and inadmissible.
An admission or statement against interest by a party, including the defendant in a criminal action, falls among long-established exceptions of the hearsay rule. (People v. Ferdinand, 194 Cal. 555, 568, 229 P. 341; People v. Connelly, 195 Cal. 584, 597, 234 P. 374; People v. Chan Chaun, 41 Cal.App.2d 586, 593, 107 P.2d 455; People v. Crowl, 28 Cal.App.2d 299, 309, 82 P.2d 507; People v. Speaks, 156 Cal.App.2d 25, 34, 319 P.2d 709.) If a sufficient foundation is laid for its proper admission, the trier of fact then becomes concerned only with its authenticity and the weight or probative effect to be given to such admission or statement. From all that appears in the record, the telephone calls were actually made by appellant. There is no evidence to the contrary. The foundation for admitting this testimony was properly evaluated by the court and it was before the jury as valid evidence.
As to point 7, appellant seeks to invoke the rule outlined in People v. Dorado, 62 A.C. 350, 42 Cal.Rptr. 169, 398 P.2d 361, against permitting into evidence the admissions or confession of a party who later becomes a defendant in a criminal action when they are made to the police or an officer during the investigation of the crime. An extended discussion of the rule here is unnecessary. At page 368 of the Dorado opinion in 62 A.C., at page 180 of 42 Cal.Rptr., at page 372 of 398 P.2d however, we find this language:
'Finally, we cannot dispose of the introduction of the illegally obtained confession upon the ground that it constituted merely harmless error. Although under some circumstances the introduction into evidence of statements obtained from a defendant during police interrogation in violation of his right to counsel and his right to remain silent may constitute harmless error, we are convinced that the error is necessarily prejudicial when the statements are confessions. * * * [Italics added.]
'The use of an involuntary confession results in a denial of due process and It will be noted from the foregoing language that a reversal becomes mandatory only in those instances where the adverse evidence obtained amounts to the dignity of a confession. On page 360 of the Dorado opinion as it appears in 62 A.C. 350, 42 Cal.Rptr. 169, on page 176, 398 P.2d 361 on page 368, the court prefaces the above language by this statement:
'In a decision that preceded Massiah [Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246] and Escobedo [Escobedo v. State, 378 U.S. 478, 84 S.Ct. 1758] this court recognized that the accused has a right to counsel at this critical accusatory stage. In the prophetic words of Justice Schauer, writing for the court in People v. Lopez (1963), 60 Cal.2d 223, 243, 32 Cal.Rptr. 424, 435, 384 P.2d 16, 27: 'Neither article I, section 13, nor the statutes implementing the right granted therein, should be construed in a manner that would hamper legitimate police investigation when no substantial right of the accused is involved. We do not believe that the accused has a right to have counsel present during purely investigatory activities which are not designed to elicit information from the accused or otherwise impinge upon his constitutional rights.' (Italics added.)'
In the present case, appellant complains only of the conversations held by Officer Robert Rodriguez with appellant. At all other times subsequent thereto, appellant was represented by an attorney and according to the record made no statements.
The testimony of Officer Rodriguez concerning all of his conversation with appellant is as follows:
'Q Did you take any subsequent action in connection with the case?
'A About 1:30 p. m. I did contact the suspect in regards to the situation.
'Q That was on the same day?
'A Yes, sir.
'Q Do you recognize him in the courtroom?
'A Yes, I do.
'Q Where is he?
'A Next to the defense counsel.
'Q Where was it you contacted him?
'A At the Hamilton Drug Store, corner of LaVerne and Gary Avenue, Pomona.
'Q Did you have any conversation at that time?
'A Yes, I did.
'Q Was anyone else present?
'A Not at that time.
'Q Some later time?
'A Yes, sir.
'Q Where was that?
'A In the police unit in the Carbon Canyon area.
'Q Who was that, that was present?
'A Officer Jackson, myself, and the suspect.
'Q Were there any other conversations at any other time and place between you and Mr. Erb?
'A Other than at the Hamilton Drug Store and in the Carbon Canyon area, we did stop at the Brea Police Department for about a half hour.
'Q At any of these places did you or anyone, any other law enforcement officer make any promises to Mr. Erb?
'A No, sir, none whatsoever.
'Q Did you make any threats in order to induce him to discuss the matter?
'A No, sir.
'Q Did it appear to you that his statements were free and voluntary?
'A Yes, sir, they were.
'Q Would you indicate what the substance of his comments were?
'A He stated that he had taken the victim out for dinner, and that he had made a stop in the Carbon Canyon area, but he denied having attempted 'Q Were you able to ascertain where he said that he had taken the victim?
'A Yes, he directed us to a spot in Carbon Canyon, Carbon Canyon Road and a branch that goes north of there, Valencia is the name of the street, approximately 50 yards, between 25 and 50 yards north of Carbon Canyon Road there is a little wide spot in the road there. He directed us to that location, where he said he had stopped.
'Q 50 yards, you say?
'A Between 25 and 50 yards north of Carbon Canyon Road.
'Q Did he say why he had stopped there?
'A Yes, sir, he said that he had been drinking and he parked the car and walked back away from the car to relieve himself, as he had had a few beers.
'Q Did he say whether or not any other stops were made?
'A No, sir, at that time he went directly home, took the victim home.
'Q There were or were not?
'A There were not any more stops, no, just that one.
'Q He said he had not molested Miss Lemieux. Did he say whether or not there was any such contact?
'A He said he didn't bother her at all, didn't even attempt to bother her.
* * *
* * *
'Q Was there anything said about sexual intercourse or sex contact on a voluntary basis?
'A I don't recall, I'm inclined to believe no, that no voluntary
'Q That nothing was said or
'A He stated that he was a perfect gentleman, he didn't bother her at all. This was the essence of his statement, the whole afternoon.
'Q Possibly it's a language difficulty that I am using the wrong word. I am trying to find out if he made any statement to you that would indicate that she had voluntarily engaged in intercourse with him?
'A No, he did not.'
It will be noted from the above that defendant made no statements other than those which were purely exculpatory. He admitted nothing which could tend in any way to incriminate him other than to say that he knew the prosecuting witness and had been with her on the evening in question. We do not deem such statements to be of an incriminatory nature even under the circumstances here. Surely testimony of the officer concerning them, if error at all, would amount to only the harmless error referred to by the Supreme Court in the language quoted above from the Dorado case. Such statements were a far cry from a confession or from such damaging admissions approaching a confession as would require a reversal based upon a denial of due process.
Appellant's final point is that he is entitled to a new trial because the trial court failed to rule on his motion for a new trial. The record does not show that the court ever actually made a formal ruling. However, it does show that counsel for appellant persisted in aggressively pressing for a ruling favorable to defendant even after the formal arguments were over and while the trial judge was attempting to express his views upon the motion preparatory to making his ruling. If the court failed to formally rule, it was obviously because of this confusion caused by defendant's counsel. Defendant cannot in reason, therefore, now hope to take advantage of a situation wherein his counsel played the major role in causation. All parties obviously understood what the ruling was, or was to be, and in order for defendant to now complain and claim error it was incumbent upon him at the time to call the court's attention to the fact that no formal ruling had been made and to request a formal ruling. 'It is an established rule that a party cannot take advantage of the behavior of the trial court by withholding his objections or motions before the trial court, then asserting his rights on appeal after the verdict has been adverse to him.' (People v. Murphy, 207 Cal.App.2d 885, 890, 24 Cal.Rptr. 803, 806.)
Under the circumstances here, the pronounced judgment was the equivalent of a formal order denying defendant's motion for a new trial. (People v. Blackman, 223 Cal.App.2d 303, 306, 35 Cal.Rptr. 761.)
The judgment is affirmed.
BROWN, Acting P.J., and COUGHLIN, J., concur.